Righting Copyright: An Interview with Lawrence Lessig

Jay Worthington and Lawrence Lessig

“Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”—United States Constitution, Article I, Section 8

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas sh­ould freely spread from one to another over the globe, for the moral and mutual instructio­n of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody … The exclusive right to invention [is] given not of natural right, but for the benefit of society.”
—­Thomas Jefferson to Isaac McPherson, 1813

The public domain, the total body of material available for free and unrestricted public use, has been withering on the vine in the United States for the last 40 years. Since 1962, Congress has expanded the term of copyright 11 times, most recently with the Copyright Term Extension Act of 1998 (named the Sonny Bono Act, after the dead Congressman), which added 20 years to all existing copyrights, for a total of 95 years of protection. It is no coincidence that the period Congress has refused to allow into the public domain begins in the early 1920s, when the modern film industry first started to generate a significant volume of works that remain valuable today.

On October 9 of this year, the US Supreme Court will address the state of American copyright law. Eric Eldred, founder of Eldritch Press, an online publisher of public domain books, has challenged the 1998 copyright act, arguing that its retroactive extension of copyright terms was beyond Congress’s constitutional power. Lawrence Lessig, a professor at Stanford Law School and the author of The Future of Ideas and Code and Other Laws of Cyberspace, is representing him in the case. Lessig is also the chair of Creative Commons, an organization devoted to the development of licenses and code promoting the use of public domain material on the web. In May of this year, after the Supreme Court agreed to hear Eldred’s case, Jay Worthington spoke to Lessig about the latest—and some of the very oldest—issues in copyright.

Cabinet: Why does the public domain matter?

Lawrence Lessig: Creativity builds upon the public domain. The battle that we’re fighting now is about whether the public domain will continue to be fed by creative works after their copyright expires. That has been our tradition but that tradition has been perverted in the last generation. We’re trying to use the Constitution to reestablish what has always been taken for granted—that the public domain would grow each year with new creative work.

Was there any sense back in 1976 that Congress was at the beginning of a slippery slope where now the end point, if any, is only visible past 2018?

In 1962, Congress started extending the term of existing copyrights. At first, these extensions were just a couple of years at a time. By 1976, there were many years of copyrighted material that was about to fall into the public domain. Owners of that material had a strong interest to lobby Congress to extend the terms again. So they did. Congress extended the terms again by 19 years in 1976, and by 20 years in 1998. I don’t know when the slope got slippery, but there’s nothing to indicate Congress will stop.

It doesn’t seem that the shutdown of Napster has spurred any kind of a movement to pressure Congress to revise Sonny Bono.

It hasn’t. Nor was there a response to Napster’s shutdown either. This is because the protectionists have been successful in getting the world to view copyright issues as a simple choice between theft or not. To support Napster was to support theft, and there’s no strong social movement in favor of theft. But to see these issues as a simple question about theft is to miss a much bigger question: Whether existing businesses can use the law to protect themselves against a new form of competition. A stronger public domain would support much stronger competition.

Is that the thrust of the Creative Commons project?

Yes. Creative Commons is a second stage in this campaign. The first is Eldred. Creative Commons will increase the range of content marked for public domain-like uses. Some stuff will be directly in the public domain; other stuff will be marked so that it’s available for non-commercial use or use with attribution or copyleft use. Any of those uses will be identifiable based on machine-readable tags that we will attach to content, and that will make it easier to identify available work.

Is it part of your long-range goal to develop a community that’s emotionally and politically invested in preserving the public domain?

Yes, certainly. And the way to do that is not just to get people who are willing to go to the barricades, but also to get ordinary people to recognize the importance of the public domain to creativity. We are a cut-and-paste culture. The aim of the protectionists is to argue that a cut-and-paste culture is criminal. Well, it’s only criminal if there’s nothing out there that you can freely cut and paste. If we increasingly mark material as available for these non-commercial uses, then people will have the opportunity to see its importance.

And yet right now, even someone as liberal as Congressman Barney Frank seems to have bought into the characterization of cut-and-paste as theft.

This is an opportunity as much as it is a curse. The issues we’re talking about are not political in the sense that Democrats get it and the Republicans don’t. There are people on both sides of the aisle who understand what’s at stake—like Chris Cannon and Rich Boucher—and people on both sides who don’t. Because the issues don’t have any obvious politics to them, people are more likely to listen to reason about them.

So where’s the American Civil Liberties Union?

It’s a good question.

It would seem that they would have had an interest in joining the Eldred case with an amicus brief.

You would have thought. They’ve spent an extraordinary amount fighting to guarantee adults the right to get pornography on the Internet. I believe in that cause, but it seems a very narrow conception of what the first amendment values are to think that it’s only affected when there’s regulation of porn, and not affected by broad privatization of speech.

But again, in a certain sense it’s a good thing that our amicus briefs are not tilted too much one way or the other. From the conservative side, Phylis Schlaffly filed a brief, and among the economists were five Nobel prize winners, including Milton Friedman and James Buchanan. So too did the Free Software Foundation file a brief, as well as a large number of copyright and constitutional law scholars. This is a case that appeals to both sides of the aisle, and a strong ACLU presence might have obscured that fact. But it does surprise me, however, that the ACLU has not been a leader in resisting the expansion of this form of private control.

How wide a range of interests do you see represented in Eldred? Are there fracture lines that could be signs of trouble down the road? Are there things that all of you agree on?

At this stage, there is just agreement. Everyone agrees that copyrights should expire and that works should then pass into the public domain. That’s a minimum, and beyond that the question will be just how much feeding the public domain needs. We’re going to see some arguments about that down the road, but that’s a long way from here.

In your brief for the case, you talk a lot about the effect of copyright upon academics who want to work with copyrighted works from the 1920s and 1930s. I was struck by stories like that of the Lorenz Hart estate refusing the rights to his lyrics to any biographers who mention his homosexuality, or by the inability of the producers of the “Who Built America?” series on the Depression to get the rights to Huey Long’s campaign songs. I don’t see a lot of references to appropriation artists who work with the material of that period, though.

Yes, and that’s a strategic call. While appropriation art is critical to art, it’s an ambiguous art form in the world of the Supreme Court.

Even though from a copyright point of view it seems hard to distinguish some appropriation art from the work of an art historian.

There’s no way.

You’ve repeatedly been grim about the long-range democratic prospects for organizing around the public domain. Is judicial action the best you can hope for right now?

It had better not be. I’m encouraged by the reaction to the Eldred case, and I hope we can build on that with the Creative Commons. But it will take much more than a single judicial victory to change this trend. We need a broader political and social movement around these ideas.

In a world where Disney holds a lot of copyrights from the 1920s, how would that happen? Over the last 30 years, after all, it’s been pretty easy to predict when Congress would extend copyright simply by looking at when Mickey Mouse was next scheduled to slide into the public domain.

Well, it certainly is not the case that you would ever to get Disney to agree that copyright terms are limited. That’s why we’ve gone to the courts. But if copyright terms are limited-if we succeed in establishing that-then we can begin to think about other steps after that. One idea that we’ve been floating is this: Everybody talks about intellectual property as a form of “property.” One thing we might ask these people is, “Have you paid your property taxes for this property?” Of course, the answer is no. We have taxes on land, and taxes on cars, but not taxes on the form of “property” that copyright protects. So I think we might use this disparity to help fuel a regeneration of the public domain. Let’s say after fifty years, in order to keep a copyright you’ve got to pay an annual tax of $10 per copyright. When you pay this tax, the copyright office would record that, for example, Lessig paid $10 for The Future of Ideas. But if for three years you don’t pay a tax on a particular work, the work would then become forfeit to the public domain. Disney shouldn’t have any opposition to that, because it’s going to be worth it to them to pay $10 to save a $100 million movie. But for the other 85% of works that have no continuing commercial value, no tax would be paid, and they would move into the public domain. That’s a balance that’s sensible from the standpoint of both the commercial and non-commercial interests.

Did Congress even debate any possibilities like that in 1998?

No. That’s the point. Congress feels totally free of the mandate that they support the public domain. This is why our constitutional challenge is so important. It wasn’t on their radar because Congress believed it could legislate outside the view of the Constitution. It thought its power was unbounded, and that it therefore didn’t need to tailor its law to the narrow interests it might try to advance. If we succeed, the one consequence will be that Congress in the future will have to be more careful.

Do you think Sonny Bono was in good faith when he said that he wanted copyright to extend forever?

Sure. He had a different vision of copyright. Indeed, most of Congress did. The testimony leading up to the passage of the statute is filled with sneering at the framers’ vision. Witness after witness spoke as if the framers were pirates, that they didn’t understand the importance of property. It’s astonishing from an historical perspective, but it’s a reflection of the fact that we have no appreciation of the role that limited copyright durations were to play in assuring that there wasn’t a concentration in control over speech. This was the most interesting fact we learned in our research: that the copyright clause was an example of the framers’ more general fear of concentrated power. Just as they limited federal power to protect states, and limited the church’s power to protect religious diversity, so too did they limit the copyright power to assure there wouldn’t be concentrated power over learning. The framers hated concentrated power, and they especially hated the concentrated power of publishers. Publishers were their “axis of evil.” They were stifling the spread of knowledge. But the power they had then is nothing when compared to the power publishers have today. There’s never been a time when the “publishers” have controlled a greater proportion of the potential evolution of our culture. The law regulating copyright then was not as powerful or as broad as the law regulating copyright now.

Is that principally a function of technology or law?

It’s both. Technology adds to the power the law originally gave.

Given that English copyright back then was perpetual, how can copyright be more powerful today?

The term was perpetual, but the right was narrow. It only granted authors control over the republication of a particular work. It didn’t regulate derivative works, or give the publisher any way—either legally or technologically—to control the use of copyrighted work. Today the rights are much broader, and the technology gives the copyright holder the power to control how a copyrighted work gets used. This is not just an incremental change; it instead changes the character of the control that copyright owners can exercise. The rights are broader, the term is now essentially unlimited, and the technology reaches out to control not use republication, but effectively use.

How big a role does fair use play in your argument?

Not big enough. Copyright holders treat the world as if it is divided cleanly between perfect control and fair use—as if these are the only issues. But fair use was supposed to be a narrow exception to a narrow terrain of proprietary control. Both were to leave a whole bunch of uses unregulated by copyright law. To read a real-space book, for example, is not a “fair use” of the book. It is instead an unregulated use. But now, with the increasing technicalization of copyright law, there’s nothing that can’t be controlled; there’s no use that can’t be controlled in cyberspace, and that means that there are no unregulated uses, which means that for every use you want to make that’s not permitted by the copyright holder you’ve got to make a fair use argument. That’s an extraordinary shift in the balance. The number of times you read a book is not in any sense a copyright interest. Your use of the book is completely unregulated, yet, when Adobe’s e-book reader is implemented to say that you can read this book ten times, under the existing conception of copyright, that would give them the ability to control that use. Why should they have the ability to control that use? And why should I be forced to make a fair use argument in response to their control of that use? Copyright is not properly about regulating use; it’s about regulating the production process, which was paradigmatically a copying process.

And what would you answer to people who argue that copyright didn’t traditionally regulate uses past the first sale simply because it was impossible to monitor them, and now that we have that capability, we should in fact rethink those questions from the ground up and not take the unregulated terrain of copyright doctrine for granted?

Well, maybe we shouldn’t take our initial freedoms for granted, but I would think that the people who framed the power of Congress to grant this right would be astonished by the assertion that that so-called exclusive right means that the publisher has the power to control how many times you read a book. It’s just nowhere in the conception of the exclusive right that they were trying to give Congress. The power that Congress now has to give publishers perfect control over copyrighted materials is a completely unintended or unanticipated power.

Isn’t that a core problem here—­that we live, from the point of view of information technology, not just in a place the Framers of the Constitution didn’t foresee, but in a different universe from them?

Yes, and in my first book I talk about how this becomes an almost impossible problem of translation; there are just so many latent ambiguities involved. But I think if you teased out all the latent uncertainties, you’d still conclude on the side of freedom. There’s nothing in their tradition that would have supported the idea of this power to perfectly control the learning process. That’s what this essentially is. So I’m pretty confident about where they would come down on the question. Jefferson was the first Patent Commissioner, and yet he was very skeptical about patents.

So why aren’t more people in Congress reading Jefferson?

He doesn’t give much money anymore.

In the governance of the Internet, where money is less obviously a direct factor, why isn’t there a push to have more democratic processes controlling how the rules are made, how trusted systems and handshaking protocols are defined? If anything, there’s been a recent move away from democratic rulemaking institutions.

I agree. I think that’s because Internet types are essentially apolitical. One theme of what I’ve been writing has been to get people to understand that “apolitical” means “you lose.” It doesn’t mean you live a utopian life free of politicians’ influence. The destruction of the public domain is the clearest example, but it will only be the first.

Lawrence Lessig is a professor at Stanford Law School and the author of The Future of Ideas and Code and Other Laws of Cyberspace.

Jay Worthington is a lawyer in New York City. He is also one of the founders of Clubbed Thumb, an independent theater company in New York, and editor-at-large at Cabinet.